Court of Appeal sets out principles in considering the setting of listed buildings and the effect of developments

buildingsThe Court of Appeal has set out general principles to be applied when considering the setting of listed buildings and the effect of developments, with a report from the Local Government Lawyer.

image: IHBC

Local Government Lawyer writes:

The Court of Appeal has handed down judgment in the conjoined appeals of Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer (Historic England intervening in both appeals): [2018] EWCA Civ 1697

The case concerned an Inspector’s decision of 22nd August 2016, granting planning permission for a housing development on land approximately 1.5km to the south of the Grade 1 listed Kedleston Hall. Lang J quashed the decision, concluding the Inspector had adopted an unlawfully narrow approach to the question of the ‘setting’ of the listed building, had focused on finding a ‘visual’ connection, and had ‘set to one side’ the historic social and economic connections between the Appeal site and the Hall.

The Court of Appeal allowed the appeals in a judgment handed down on 18th July 2018. Giving the leading judgment, Lindblom L.J. set out three general principles to be applied when considering the setting of a listed building and the potential effect of a development on that setting:

‘Three general points emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development ‘affects’ the setting of the listed building, and to perform the statutory obligation to ‘have special regard to the desirability of preserving … its setting …’.

‘Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting (see the discussion in sections 14.3, 15.2 and 15.8 of Mynors and Hewitson’s ‘Listed Buildings and Other Heritage Assets’, fifth edition). Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the ‘surroundings in which [the heritage] asset is experienced’, keeping in mind that those ‘surroundings’ may change over time, and also that the way in which a heritage asset can be ‘experienced’ is not limited only to the sense of sight. The ‘surroundings’ of the heritage asset are its physical surroundings, and the relevant ‘experience’, whatever it is, will be of the heritage asset itself in that physical place.’

‘Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the ‘significance’ of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that ‘considerable importance and weight’ must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that ‘the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly’.’

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